Sen. Darlene Fairley, D-Lake Forest Park, has introduced Senate Bill 6408, an ill-advised piece of legislation that would have a horrible chilling effect on this state’s Public Records Act and the ability of citizens to pry the records out of the hands of public agencies. Under her bill, litigants who successfully sue for public records might not recoup their attorney fees and any fines would go to the state archivist, not the person who filed the lawsuit.
While Fairley has sponsored the bill, the real advocate is Sen. Mary Margaret Haugen, D-Camano Island. Haugen says the bill takes the financial incentive out of it for people who have “made a business” out of suing the state, cities and counties for their noncompliance with the disclosure law. Especially galling, Haugen testified, is that many of the successful litigants are from out of state.
There’s a simple solution here. Agency officials at all levels of government need to comply with the law and disclose public records in their custody. Follow the law and there’s no problem, no lawsuit and no fines. Agencies that break the law must be held accountable.
Some agency leaders forget that they are the mere custodians of records. The records themselves belong to the citizens, and citizens have a right to inspect and copy those documents.
In 1972 the citizens of this state took a bold step when they passed Initiative 276, which says government meetings shall be open to the public and government records shall be accessible to the public.
The Public Records Act gives agencies three options when an individual or organization requests a public record: provide the records, provide a reasonable estimate of the time the agency will take to respond to this request, or deny the request under one or more of the 300 exemptions.
The agency has the burden to prove why records are not disclosable.
Citizens can challenge the nondisclosure decision in court. When they win, citizens are awarded all costs including reasonable attorney fees. In addition, the court has the discretion to fine the agency no less than $5 and no more than $100 for each day the person was denied the public record.
The Fairley/Haugen bill makes a substantial change to the law. Litigants are no longer guaranteed attorney fees. Under the bill the awarding of fees would be up to the judge.
Also, any fines against the agency would not be awarded to the person who brought the lawsuit. The fines would go to a state account to preserve and protect public records.
The goal of the two senators, obviously, is to take any financial incentive out of filing lawsuits under the Public Records Act.
“It will gut the Public Records Act,” said Greg Overstreet, former public records ombudsman and an attorney in private practice. “The law doesn’t enforce itself. Love ’em or hate ’em, it takes lawyers to enforce this law and they need to be paid. The law doesn’t enforce itself.”
“The net effect of this bill, I’m afraid, is to end public disclosure,” testified Rowland Thompson, lobbyist for daily and weekly newspapers. He noted that the reason this bill was put forth is because agencies of government are violating the law by not disclosing records and are getting sued – successfully.
Shankar Narayan, lobbyist for the American Civil Liberties Union of Washington, also testified against the bill, saying it goes “too far.” He said citizens won’t bring lawsuits if they know that they might not recoup their attorney fees, even if they win in court. The bill is a deterrent to citizen participation in governmental affairs, he said.
“What needs to happen is agencies need to do a better job of disclosing these records,” Thompson said.
He’s right. Agencies that comply with the law won’t be fined.
As for the handful of individuals hoping to use disclosure laws and agency missteps to get rich, Attorney General Rob McKenna has asked lawmakers to consider a new approach to settling public-records disputes by creating a new Office of Open Records that would use hearings judges to decide who is right. Using mediation to settle these disputes short of court makes sense and deserves legislative consideration.
As for Senate Bill 6408, it must be rejected by lawmakers because it undermines the public’s right to know and would have a chilling effect on this state’s public disclosure laws.
